Philadelphia, PA-based immigration lawyer Morley J. Nair feels that possible misinterpretation and misapplication of a recent memo issued by the U.S. Citizenship and Immigration Services (USCIS) could threaten the H-1B non-immigrant visa program.
Philadelphia, PA (PRWEB) January 26, 2010 -- Philadelphia, PA-based immigration lawyer Morley J. Nair feels that possible misinterpretation and misapplication of a recent memo issued by the U.S. Citizenship and Immigration Services (USCIS) could threaten the H-1B non-immigrant visa program.
The Memo, issued by Donald Neufeld, Associate Director, Service Center Operations, USCIS, on January 8, is aimed at providing guidance on the employer-employee relationship in the context of H-1B petitions. However, since then, there have been reports (though seemingly not covered in the national media) that U.S. Customs and Border Protection (CBP) has deported a number of non-immigrant professional workers arriving at Newark, NJ airport on H-1B visas. This event, reported in a number of immigration lawyers' blogs as well as talked about on internet discussions forums, has sent shockwaves through the H-1B community in the United States.
H-1B visas are granted by the US Citizenship and Immigration Services (USCIS) to foreign nationals to work in "specialty occupations" that require a minimum U.S. bachelor's degree or equivalent. Currently the worldwide annual quota is 65,000 visas, out of which 6,800 are reserved for nationals of Singapore and Chile. Additionally, there is a special quota of 20,000 visas available for holders of advanced degrees from US graduate schools. Further, certain exempt employers are not subject to this quota. Employers in the Information Technology field are major users of H-1B visas.
“At its core, the Neufeld Memo underlines the requirement of an employer-employee relationship that would last the entire period of the foreign individual’s H-1B stay in the United States,” Attorney Morley J. Nair said. “In such a relationship the H-1B employer should have the actual control or the right to control the employee - to hire, fire, pay, and to decide when, where, and how the employee will be employed.”
Attorney Nair said that H1B employees working at a client site or a third party site is a practice as old as the H1B program itself, and is not a violation of the regulations when supported by appropriate documentation. The renewed focus of the CBP enforcement action is as to who the actual employer is. When the H-1B employee works at a client site, or a third party site, the H-1B employer may not always be able to exercise “actual” control over the individual’s employment. But to maintain the H-1B status and be in compliance with the regulations, the H1B employer needs to prove the “right” to control, if not the “actual” control.
The Law Offices of Morley J. Nair, founded by Attorney Nair, has been in existence for more than 12 years, and has processed thousands of H-1B petitions and hundreds of permanent residence (popularly known as "Green Card") cases, on behalf of both corporate and individual clients all over the US.
Attorney Nair said based on his experience in processing thousands of H-1B petitions and attending to the resultant issues, the uncertainty in employer-employee relationship can be addressed with a little foresight, logical planning, and preparation and maintenance of appropriate documentation. Also, H1B employees should be educated on how to answer questions from overbearing government officials. “We, at our office, always make it a point to emphasize to H-1B employers and employees alike to strictly adhere to the governing regulations and requirements of the H-1B program,” he said.
“It takes logical planning under effective legal guidance,” Attorney Nair said. “In conclusion, we would like to remind that the government’s enforcement of these regulations can be expected to become stricter in the future, and appropriate proactive steps will save the employers and employees alike a lot of hardship and aggravation.”
Contact:
The Law Offices of Morley J. Nair
215-744-5100
http://www.h1bplanet.com
http://www.visaworks.com
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[Via Legal / Law]
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